The B.C. Labour Relations Board recently held that it has jurisdiction to grant union certification to a group of employees working for a First Nations social services agency.
The decision concerned the NIL/TU’O Child and Family Services Society, a provincially incorporated company which provides services to First Nations families living on reserve land. All but one of the Society’s employees is of First Nations descent and most of the services are provided on reserves. When the Union applied to the Board under s. 18 of the Labour Relations Code to represent the Society’s employees, the Society made a preliminary objection based on the Board’s jurisdiction.
The employer’s primary argument was that the Society’s labour relations fell within federal jurisdiction because section 91(24) of the Constitution Act, 1867 grants exclusive jurisdiction to the federal government in matters relating to “Indians and lands reserved for Indians”.
The Board rejected this argument, despite finding the Society was an “Indian” organization. It held that there must be a connection to the exercise of federal legislative power to attract federal jurisdiction over labour relations. A mere connection to “Indian” content is not sufficient. Applying this test, the Board concluded that the character and nature of the Society’s services are not federal nor is it federally regulated. The federal government’s role is limited to partial funding. Further, the Society does not function as a First Nations Band as contemplated by the Indian Act.
The Board also rejected the employer’s alternative argument that the Labour Relations Code conflicts or impinges on the aboriginal right to self-government.